Handling Employee Alcohol and Drug Use

What employers can do about employee alcohol and drug use.

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Employees who abuse alcohol and drugs (including illegal drugs, prescription drugs, and over-the-counter drugs) -- either on their own time or at work -- can pose significant and wide-ranging problems for their employers, managers, and coworkers. These problems can include diminished job performance, lowered productivity, absenteeism, tardiness, high turnover, and increased medical and workers' compensation bills. Employees who abuse drugs and alcohol can also make a workplace more volatile and more dangerous, and they can expose employers to legal liability.

Alcohol Use at Work

Your company's employee handbook (or its verbally announced workplace policies) should state that drinking on the job is not allowed. If you catch an employee actually using alcohol at work, you can deal with it through your company's standard disciplinary procedures. Depending on the circumstances and on your company's policies, the punishment can range from an oral reminder to immediate termination.

The consequences should depend in part on whether the employee has endangered the health and safety of others. For example, an employee who has a few beers at lunch before returning to work operating a forklift might warrant more severe discipline that a waitress who has a glass of wine at lunch. 

Off-Hours, Off-Site Alcohol Use

Many people drink alcohol when not at work. Most employers aren't concerned about an employee's occasional drink -- or even the occasional overindulgence -- as long as it doesn't affect the employee's work performance. But when off-site, off-hours drinking begins to take its toll on the worker's ability to do the job, employers may have reason to take action.

Handling a worker with a drinking problem or alcoholism is tricky business. The federal Americans with Disabilities Act (ADA) and many state disability rights laws protect alcoholics from workplace discrimination. The ADA doesn't allow employers to make an employment decision based solely on the fact that an employee is an alcoholic. An employer can, however, make a decision (including a decision to discipline or terminate an employee) based on the employee's inability to meet the same performance and productivity standards that it imposes on all employees.

Legal Drug Use

Many employees properly use prescribed or over-the-counter drugs, such as sleeping aids, cold medicine, or painkillers. Most employers sensibly believe that this is none of their business, as long as the drugs don't impair the employee's job performance.

Things get trickier, however, if legitimate drug use affects an employee's ability to do the job safely and well. For example, medications that cause drowsiness might make it downright dangerous for a worker to do a job that requires driving or operating machinery. Medication may also impair judgment and abilities, which could impair a worker's ability to meet job requirements.

If an employee's performance is affected by the proper use of prescription or over-the-counter drugs, state and federal disability laws may limit an employer's options. Depending on how the drug affects the employee, and whether the employee suffers from a disability within the meaning of these laws, your company may have to accommodate the employee's use of the drugs.

Illegal Drug Use and Possession

If an employee is under the influence of illegal drugs at work, disability rights laws do not limit your company's options. You may deal with that employee through your company's standard disciplinary procedures. If the employee has not created a safety threat and does not hold a highly sensitive position, a written reprimand might be appropriate for a first offense.

If the employee endangers the physical safety of others -- for example, by driving the company van after smoking marijuana at home -- something more drastic is called for. If the employee has a drug problem, one option is to suspend the worker until he or she successfully completes a treatment program. Some employers, however, opt for a zero-tolerance policy under these circumstances and immediately suspend and then terminate the employee. Because using, selling, or possessing illegal drugs is a crime, many employers immediately terminate employees who engage in this type of behavior at work.

Drug Testing Current Employees

Drug testing is a dicey legal issue for employers -- and one that should be approached with caution. Drug tests are highly intrusive, yet they can also be invaluable tools for preventing drug-related accidents and safety problems. For more information, see Nolo's article on Testing Employees.

The law of drug testing is changing rapidly as more courts rule on employee lawsuits claiming that a particular drug test violated their right to privacy. Because drug testing is intrusive, a worker who sues you and convinces a jury that a test was illegal (in violation of either your state's drug testing laws or your state's privacy laws) could cost your company a lot of money -- and ruin its reputation as a fair employer. 

Before performing any drug test or adopting a drug test policy, you must get some legal advice. Here are some guidelines to consider.

Whom to Test

Avoid testing every employee for drugs, and avoid random drug testing. Unless all of your company's workers perform dangerous jobs, these sorts of tests cast too wide a net. A drug test is most likely to withstand legal scrutiny if you have a particular reason to suspect an employee of illegal drug use or the employee's job carries a high risk of injury.

When to Test

Your company will be on the safest legal ground if your primary motive is to ensure the safety of workers, customers, and members of the general public. Employers are most likely to withstand a legal challenge if they limit testing to:

  • employees whose jobs carry a high risk of injury to themselves or others (such as a forklift operator or pilot) or involve security (a security guard who carries a gun, for example)
  • workers who have been involved in accidents (for instance, a delivery driver who inexplicably ran a red light and hit a pedestrian)
  • employees who are currently in or have completed a drug rehabilitation program, and
  • workers whom a manager or supervisor reasonably suspects are illegally using drugs.

How to Test

Even if you have strong reasons for testing, your company can still get into legal trouble over the way the test is administered and interpreted. To be safe, employers should:

  • use a lab that is certified by the U.S. Department of Health and Human Services or an equivalent state agency
  • consult with a lawyer in developing testing policy and procedures
  • use a testing format that respects the privacy and dignity of each employee
  • have a written policy in place about drug use in the workplace (including a discussion of the disciplinary steps the company will take and under what circumstances) and testing procedures (including when the test will be given, how the test will be administered, and what substances -- at what levels -- the test will detect)
  • require employees to read the drug and alcohol policy and testing policy and sign an acknowledgment that they have done so
  • for every drug test administered, document why it was necessary and how the test was performed
  • keep the test results confidential, and
  • be consistent in how the company deals with workers who test positive.

Employers cannot force workers to take a drug test against their will. However, an employee who refuses to take a drug test can be fired for that reason, as long as the employer had a solid basis for asking the employee to submit to the drug test in the first place. 

For more information on testing your employees, see Nolo's article on Testing Employees. For information on using pre-employment tests to screen out potential problem employees, see Nolo's article Testing Job Applicants. Finally, for more information in general on employee drug and alcohol use and many other human resources issues, see the book The Manager's Legal Handbook, by Amy DelPo and Lisa Guerin (Nolo).

by: , J.D.

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